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Large clothing retailer settles I-9 discrimination claims caused in part by its HR software

Yesterday, the Department of Justice, through its Immigrant and Employee Rights Section (IER), announced a settlement agreement with Gap, Inc., resolving claims that the company routinely discriminated against certain non-U.S. citizen employees in connection with their I-9 reverification process.

According to the settlement agreement, IER began investigating Gap in 2018 after receiving a complaint from an employee that alleged unfair documentary practices. Based on its independent investigation, IER concluded that the company had engaged in a pattern or practice of discrimination against certain non-U.S. citizens because of their current or prior immigration status (more on this below).

And in a sign of the times, IER also implicated the company’s electronic I-9 software as well, noting in their announcement that the company’s “reliance on an electronic human resource management system (which had electronic Form I-9 functions) contributed to the company’s discriminatory conduct.”

As part of the settlement, Gap will pay $73,263 in civil penalties, provide back wages to certain affected employees, train thousands of its employees nationwide on proper I-9 processes, ensure that its electronic programs are compliant with applicable rules, and be subject to monitoring and reporting requirements for a 3-year period.

It’s also important to note that Gap refutes the specific claims in the settlement agreement, contending that their actions were lawful and that they did not discriminate against any of their employees or candidates. Nevertheless, the company has agreed to pay the fines and cooperate with IER with regards to the monitoring, training, and reporting requirements mentioned above (which are substantial).

What did the company (allegedly) do wrong?

If this story so far sounds familiar, that’s because is it. During the past five years alone, IER has reached more than 100 settlements to resolve claims brought under the anti-discrimination provision of the Immigration and Nationality Act, securing more than $11.5 million in back pay for discrimination victims.

Many of these settlements involve so-called “unfair documentary practices” that happen during the I-9 and E-Verify processes when an employer demands more or different documents than necessary, requests specific documents, or rejects reasonably genuine-looking documents because of a worker’s citizenship, immigration status, or national origin.

In the particular case at hand, IER alleged the following I-9 infractions:

  1. Unnecessary reverification: IER argues that Gap discriminated against certain lawful permanent residents and naturalized US citizens by unnecessarily reverifying their permission to work, even though not required by law. For example, IER found that the company required a lawful permanent resident to produce a new permanent resident card shortly before it was set to expire – even though the law does not require (or permit) an employer to reverify a lawful permanent resident who presents a permanent resident card (even a conditional one).

 

  1. Improper document demand: IER alleges that Gap improperly requested that certain non-citizens provide specific documents to confirm that they still had permission to work, instead of permitting them to choose other valid documentation. For example, IER found that the company required an asylee to produce a new EAD when the individual’s prior EAD expired, even though other documentation (such as an unrestricted social security) would also have been acceptable.

And in the “example” cases mentioned above, both employees were negatively impacted by the company’s alleged I-9 misconduct: according to the settlement, the asylee was terminated, and the lawful permanent resident was not allowed to work past her green card expiration date. Per the settlement terms, Gap has agreed to pay both of these individuals back pay, with interest.

How can a company’s HR software contribute to I-9 discrimination?

Although the settlement does not specify exactly how the company’s HR software may have influenced or contributed to the prohibited practices discussed above, IER has noted (in other agreements) some common electronic I-9 problems that can lead an employer down the unfair documentary path. These include the following:

* Prompting employer to reverify when not required: typically this happens when a system improperly considers an I-9 to be subject to reverification or looks only at an expiration date in Section 1

* Prompting employees to provide updated documents when not required: similar to the above, this often happens through a system-generated email, as we discussed in our blog last week

* Forcing employees (such as refugees and asylees) to provide an expiration date for their work authorization in Section 1, even though “N/A” is acceptable

* Requiring a social security number in Section 1 without regard to E-Verify participation

* Restricting the document options in Section 2 (or 3) based on the employee’s attestation in Section 1, which does not account for innocent mistakes or changes in an employee’s status

* Section 3 document options only showing List A documents, instead of both Lists A and C (i.e., those demonstrating work authorization)

* Section 3 automatically populating the same document type that was used in Section 2, which can lead to improper demands for specific documents (such as EADs)

* Improper submittal of an employee to E-Verify (e.g., existing hire with non-FAR employer, I-9 with receipt for lost, stolen, damaged, current employee with previously E-Verify result, etc.)

I-9 Takeaways

This latest IER settlement agreement serves as an important reminder for employers across the US: while you are charged to ensure you hire and employ a legal workforce, you must also take care to avoid discriminating against any work-authorized individual when conducting your I-9 and E-Verify responsibilities.

And for many employers, this begins with a thorough review of their HR system(s) to ensure adherence to the often confusing (and sometimes conflicting) rules for verifying a new hire’s eligibility to work in the US.

Employers should also work with experienced immigration counsel to develop policies, documentation, and training – the 3 best ways to ensure that your organization is on the same page when it comes to I-9 and E-Verify processing. Counsel can also help you resolve any past I-9 or E-Verify compliance failures and provide advice with respect to any alleged claims of discrimination.

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Have questions on today’s blog? Please drop me a line here. You can also contact us to learn more about our electronic I-9 and E-Verify platform, Guardian, which was designed by attorneys to compliantly help organizations streamline and standardize their hiring practices.


About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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